The Laws of Tisha Be-Av and the Dual Nature of the Day

Rav David Brofsky

Introduction

            The prophet Zekharia (8:19) mentions four fast days: "the fast of the fourth, fifth, seventh, and tenth months." These four fasts commemorate the events leading to and following the destruction of the First Temple. The Tosefta (Sota 6:10) records the events which occurred on these days, explaining that “the ‘fast of the fifth’ is Tisha Be-Av, the day upon which the Beit Ha-Mikdash was burned…”

The Mishna (Ta’anit 26a) enumerates the other tragedies that transpired on this day of misfortune:

Five tragic events befell our fathers… on the Ninth of Av… On the Ninth of Av it was decreed that our fathers should not enter the Land, the Temple was destroyed the first and the second time, Beitar was captured, and the city [Jerusalem] was plowed up.

In a previous shiur (http://vbm-torah.org/archive/moadim69/21-69moed.htm), I noted that different themes may combine at times to comprise the nature of a single day. For example, Yom Kippur encompasses both the aspect of a mo’ed, a festival, and a ta’anit tzibbur, a communal fast day. Indeed, we questioned whether the afternoon Torah reading of Yom Kippur reflected the ta’anit tzibbur aspect of the day, in which case only one who is fasting should receive an aliya, or the mo’ed aspect of the day, in which case anyone may ascend to the Torah.

Similarly, it seems that different themes comprise the nature of Tisha Be-Av.

On the one hand, as we discussed previously, the Talmud (Rosh Ha-Shana 18a) describes the severity of the fast of Tisha Be-Av. Its strictness justified sending out messengers to notify those outside of Jerusalem regarding the day of the consecration of the new moon and the fast in its wake, as, unlike the other three communal fasts instituted after the destruction of the Beit Ha-mikdash, Tisha Be-Av is always observed, as "multiple misfortunes befell us on that day."

Furthermore, unlike the other fast days, which are only observed “partially,” the fast of Tisha Be-Av begins the night before, and one must abstain not only from eating, but from the other “afflictions,” i.e. washing and anointing, wearing shoes, and engaging in marital relations. In addition, the Torah portion of “Parashat Va-Yechal” (Shemot 32:11-14 and 34:1-10), which is read on the other fast days at Mincha, is read on Tisha Be-Av as well. Tisha Be-Av, therefore, represents the archetypical fast day.

On the other hand, Tisha Be-Av is a day of mourning, of aveilut yeshana (Yevamot 43b), as the beraita cited by the Talmud (Ta’anit 30a) states: “All mitzvot which apply to a mourner during the seven days of mourning apply on Tisha Be-Av.”  We express this aspect of mourning throughout the day in our prayers and actions.

In this shiur, as we summarize the laws of Tisha Be-Av, we will demonstrate how these two themes combine to create a new entity - Tisha Be-Av.

Erev Tisha Be-Av - Se’uda Mafseket

The Talmud teaches that one should partake of a seuda mafseket, a final meal, before Tisha Be-Av. The mishna (Ta’anit 26b), for example, states: “On the eve of the Ninth of Av, one may not partake of a meal of two cooked foods, nor eat meat nor drink wine.” Furthermore, the gemara (Ta’anit 30a) recounts the practice of R. Yehuda ben Illa’i:

On the eve of the Ninth of Av, they brought to him dry bread with salt and he would take his seat between the [baking] oven and the [cooking] stove and eat, and he would drink with a pitcher full of water and he would appear as if a near relative were lying dead before him.

Similarly, the Rambam (Hilkhot Ta’aniyot 5:9) writes, “And he should eat it, and drink a pitcher of water, with worry, depression and weeping, as if a close relative is lying dead in from of him.”

            What may one eat at this meal? As we saw, the mishna prohibits eating meat and drinking wine at this meal, as these are important foods which arouse happiness. In addition, the mishna states that one should not eat two cooked foods. While the Acharonim discuss how to define “two cooked foods,” the Shulchan Arukh (552:6) simply writes that, when possible, one should eat dry bread with salt, along with water, for the seuda ha-mafseket. In addition, he (ibid. 5) reports that “it is customary to eat lentils mixed with boiled eggs, which are a food of mourners.”

The Rama adds that some eat hard-boiled eggs, which are also a food of mourners. Moreover, he writes that one should dip his bread into ashes, and, as the Mishna Berura (16) suggests based upon the practice of Rav as recorded by the Yerushalmi (Ta’anit 4:6), one should declare, “This is the Tisha Be-Av meal.”

            Since this simple meal would probably not tide a person over until the next day, the se’uda ha-mafseket is usually preceded by another meal. The Rama (552:9) writes:

It is customary in these regions of Ashkenaz to eat a set meal before Mincha, and then afterwards to pray Mincha and then eat the se’uda ha-mafseket. They are accustomed to increase this meal, in order that the fast should not be harmful, since we cease to eat during the day, like Yom Kippur.

Interestingly, the Magen Avraham (11) suggests that the custom to eat a large meal before the se’uda hamafseket may be rooted in a different idea. He writes that since Tisha Be-Av, during the time of the Second Temple, was a day of celebration marked by a festive meal, the custom to partake of a set meal remains as a commemoration and hope for the future.

The Magen Avraham (10) also relates that some Acharonim (Levush, Bach, Shelah) disapprove of the custom recorded by the Rama and suggest eating this large meal, if necessary, before midday.  The Eliya Rabba (12) cited by the Mishna Berura (22), however, writes that as long as one’s intention are “for the sake of Heaven,” he may partake of a larger meal after noon, but he should leave room for the se’uda ha-mafseket.

            The Shulchan Arukh (553:1) rules that one may eat or drink after the se’uda ha-mafseket until the onset of the fast, unless one explicitly accepts upon himself not to eat anymore. While the Rama adds that a mental acceptance does not constitute an acceptance, the Mishna Berura (2) writes that the Bach and Gra disagree; he therefore recommends stating explicitly that one intends to eat or drink until sunset.

The Acharonim mention a number of other customs associated with the seuda ha-mafseket.

First, one does not recite the birkat ha-mazon with a zimun. The Hagahot Maimoniyot (Hilkhot Ta’aniyot 5:7:30) writes:

Some of the great scholars of Ashkenaz… and R. Sherira Ga’on wrote as well, were accustomed not to recite the zimun with three during this meal; rather every individual should sit by himself, as it says, “Let him sit alone and keep silence” (Eikha 3:28). So, too, the Ri and R. Meshulam would recite the Grace after Meals by themselves even when sitting amongst a group of three [which would ordinarily mandate reciting the zimun]. It is proper for three people not to sit together in order that they should not become obligated in the zimun.

The Shulchan Arukh (552:8) rules accordingly, warning that three men should not sit together in order not to become obligated to recite the zimun. The Mishna Berura (19) adds that even if they did sit together, they should still not say the zimun.

Second, the Terumat Ha-deshen (1:151) writes that one should eat the se’uda ha-mafseket while sitting on the ground, although he does not need to remove his shoes. The Shulchan Arukh (552:7) records this custom as well. Those who have difficulty sitting on the floor may sit on a chair, although they should preferable change their location (Kaf Ha-Chaim 552:38).

When Tisha Be-Av falls out on Sunday, the se’uda ha-mafseket is not held on Shabbat, and the restrictions mentioned above are not observed. One may eat meat and drink wine preceding the fast. However, one must stop eating before sunset (Shulchan Arukh and Rama, 552:10).

In addition to the laws of the se’uda ha-mafseket, the Rama (553:2) writes:

It is customary not to learn [Torah] on the day before Tisha Be-Av after midday, and therefore when Tisha Be-Av falls out on Shabbat, we do not say Pirkei Avot. Similarly, one should not take walks on Erev Tisha Be-Av.

While the Magen Avraham (7) upholds this custom and suggests that one should only learn those passages that are permitted for study on Tisha Be-Av (554:1), others (Mishna Berura 8 and the Bi’ur Halacha in the name of the Maharshal and Gra; Arukh Ha-Shulchan 553:4) challenge this custom, and even testify that they themselves (Maharshal, Mishna Berura) learn after midday before Tisha Be-Av.  Certainly when Tisha Be-Av falls out on Shabbat, when one may even eat meat and drink wine, one who learns Torah until nightfall is in good company (Taz 553:2, Mishna Berura 10).

            Finally, just as one does not recite Tachanun on Tisha Be-Av (Shulchan Arukh 559:1), as Tisha Be-Av is called a mo’ed (Eikha 1:15), Tachanun is not recited at Mincha on Erev Tisha Be-Av (ibid, 552:12).

The Fast of Tisha Be-Av and the Other Fasts

As mentioned above, the fast of Tisha Be-Av differs from the other three fast days. This is true quantitatively, regarding the length of the fast and the scope of its prohibitions, but also qualitatively. We noted that on the minor fast days, in contrast to Yom Kippur, cholim (the sick) are exempt from the fast. Therefore, not only does the halakha exempt a choleh she-ein bo sakana, a sick person whose life is not in danger, from the fast, there is also no need to eat in small quantities, chatzi shi’ur, as one must preferably do on Yom Kippur. Moreover, we learned that a pregnant or nursing woman is also fundamentally exempt from fasting, even though some are still accustomed to fast.

On Tisha Be-Av, however, only the sick are exempt. Pregnant and nursing women are obligated to fast, unless fasting poses a danger to the mother or fetus (Shulchan Arukh 554:5). The Arukh Ha-shulchan (554:7) writes that pregnant (and nursing) women who are weak, and for whom fasting may lead to illness (even if not life threatening), are exempt from fasting on Tisha Be-Av. Therefore, a pregnant woman suffering from nausea, anemia (low hemoglobin), high or low blood pressure, or infection need not fast. Furthermore, a pregnant woman who fears, justifiably, that fasting may cause a miscarriage, or even bleeding or early contractions, must certainly break her fast.  

Fasting may be especially difficult for a nursing woman, as nursing causes a woman to lose fluids; by not drinking, she risks not producing enough milk for her child.  R. Chaim Mordechai Margulies (1780-1820), in his commentary to the Shulchan Arukh, the Sha’arei Teshuva (554:6), writes that if fasting will affect the quality of the mother’s milk or diminish it, which may pose a threat to the child, the mother may eat.  Similarly, the Chazon Ish (see Piskei Teshuvot 554:6) would instruct nursing mothers who feared that they would not be able to produce enough milk to break their fast.

We discussed the laws of a sick person and those who must take medication on fast days in a previous lecture (http://vbm-torah.org/archive/moadim69/20-69moed.htm).

The Prohibitions of Tisha Be-Av

Bathing and Anointing

Aside from eating and drinking, the Talmud (Ta’anit 30a) enumerates the other prohibitions of Tisha Be-Av:

Our Rabbis have taught: All the restrictions that apply to the mourner apply on Tisha Be-Av: eating, drinking, bathing, anointing, the wearing of shoes and marital relations, are forbidden thereon.

Although, as we mentioned above, this passage seems to equate the laws of Tisha Be-Av with the laws of mourning, R. Soloveitchik noted that while a mourner may wash parts of his body in cold water, on Tisha Be-Av one may not even immerse one’s finger into cold water (Shulchan Arukh 554:7). The prohibition of “rechitza” (bathing), therefore, is defined by the day’s being a communal fast day, and not just a day of mourning.

            Only washing for “pleasure” is prohibited; one may therefore wash his body if it is dirty (ibid. 9), after using the bathroom (Kitzur Shulchan Arukh 124:7), or for medicinal purposes (Shulchan Arukh 554:14). In the morning or upon waking, one may wash netilat yadayim as usual, pouring the water until the joints at the end of one’s fingers (Shulchan Arukh 554:10). One may wash in a similar fashion before prayer (Mishna Berura 21). While preparing food, one may also wet one’s hands (ibid. 19).

One who experiences extreme discomfort from lack of washing, known as an “istenis,” may wash his face (Mishna Berura 22). 

            In a previous lecture (http://vbm-torah.org/archive/moadim69/20-69moed.htm), we discussed brushing teeth on a communal fast day. We concluded that on an ordinary fast day, one who experiences discomfort from not rinsing his mouth or brushing his teeth may do so. On Tisha Be-Av, however, as well as on Yom Kippur, we noted that the Posekim are more stringent. R. Moshe Feinstein (see R. Shimon Eider’s Halachos of the Three Weeks, p. 19) even suggested that on Tisha Be-Av washing out one’s mouth may be prohibited because of “rechitza” (bathing). The Minchat Yitzchak (4:109) also prohibits rinsing one’s mouth, but permits brushing teeth with “powder” in order to reduce discomfort. Furthermore, he believes that one may clean one’s mouth in order to pray with “cleanliness.” The Mishna Berura (567:11), however, writes that even on Tisha Be-Av, one who experiences “great discomfort” may wash out his mouth.

            One may dry his hands on a towel and then use the damp towel to clean his eyes and face, as the towel isn’t wet enough to impart enough water to wet something else (tofach al menat le-hatpiach) (Shulchan Arukh 554:11). (If one must actually clean one’s eyes in the morning, it is permitted to do so normally, as it is no different than washing any other part of the body which has become soiled.) Furthermore, the Rama (ibid. 14) writes that one may pre-soak cloths before Tisha Be-Av, remove them, and then use them to clean his face, hands, and feet. Even if one’s intention is for pleasure, this is permitted because he already squeezed the water out of the cloths.

            The gemara (above) also prohibits “anointing” for pleasure on Tisha Be-Av (Shulchan Arukh 554:15). One may therefore not rub oil, cream, soap, or perfume into his skin. One may, however, rub oil on one’s skin for medicinal purposes, or use Vaseline for chapped lips or bug repellents or anti-itch sprays. Moreover, one may use deodorant on Tisha Be-Av (Bi’ur Halakha 554 s.v. sikha), as one’s intention is to prevent or remove odor. We will discuss whether this same leniency applies to Yom Kippur in a future lecture.

Wearing Leather Shoes on Tisha Be-Av

In our upcoming lectures on Yom Kippur this fall, we will discuss whether the prohibition of “ne’ilat ha-sandal,” wearing shoes, applies only to leather shoes or to other comfortable materials as well.

Briefly, while some Rishonim (Ba’al Ha-Maor Yoma 2a s.v. ve-sandal, for example) rule that one may not even wear comfortable wooden shoes on Tisha Be-Av, and some prohibit wooden shoes but permit shoes of other materials (Rashi/Tosafot), most Rishonim (Rif, Yoma 2a; Ran ibid.; Rosh, Yoma 8:7; Tur 614) rule that only leather shoes are prohibited. Furthermore, while the Rambam (Hilkhot Shevitat Asor 3:7) does not explicitly prohibit non-leather shoes on Yom Kippur, he explains the permissibility of wrapping a cloth around one’s feet, as ”the hardness of the ground reaches one’s feet and he feels [as if] he is barefoot.”

The Shulchan Arukh (554:16), ruling leniently, writes:

“The wearing of shoes” [which is prohibited] refers to [shoes of] leather. However, [shoes made of] a cloth, or wood, or cork, or rubber are permitted. Wooden shoes covered with leather are prohibited.

Some Acharonim (Mishna Berura 614:5 and Arukh Ha-shulchan 614:2-5, for example) suggest that one should be stringent and only wear shoes through which one can feel the ground. This debate may be especially important nowadays, when many people wear comfortable shoes made from synthetic materials.

Marital Relations on Tisha Be-Av

The gemara (above) prohibits marital relations on Tisha Be-Av, just as they are prohibited for a mourner. R. Yosef Karo, in his Beit Yosef (554) and in the Shulchan Arukh (554:18), cites the Hagahot Mordechai (Mo’ed Katan), who rules that one should not even sleep in the same bed with one’s wife on the night of Tisha Be-Av. The Mishna Berura (27) writes, based upon the Magen Avraham, that one should avoid all physical contact with one’s wife in the evening, as on Yom Kippur, although during the day it is permitted. Some (Kitzur Shulchan Arukh 124:12) prohibit physical contact during the day as well. The Taz (615:16) disagrees completely and permits physical contact even at night on Tisha Be-Av, and during the day on Yom Kippur. Seemingly, all would agree that affectionate contact should be avoided during the entire day of Tisha Be-Av. 

Talmud Torah and She’elat Shalom (Greeting) on Tisha Be-Av

The Talmud teaches that in addition to fasting and refraining from certain physical pleasures, bathing, anointing, wearing leather shoes and marital relations, one should also refrain from studying Torah. The gemara (Ta’anit 30a) teaches:

It is also forbidden [thereon] to read the Torah, the Nevi’im and the Ketuvim, or to study the Mishna, Talmud, Midrash, halakhot, or aggadot…

According to this passage, the prohibition to study Torah apparently stems from a broader proscription from engaging in activities that brings about happiness. The Talmud raises two exceptions to the prohibition to learn Torah. First, the beraita teaches:

He may also read Eikha, Iyov, and the sad parts of Yirmiyahu, and the school children are free [from school], for it is said: “The precepts of the Lord are right, rejoicing the heart” (Tehillim 19:9).

Apparently, since learning Torah, which “rejoices the heart,” is prohibited, those portions that sadden the heart, according to the gemara, may be studied.

Second, the Talmud cites a debate about whether one may learn “new” material:

He may, however, read such parts of the Scripture which he does not usually read and study such parts of the Mishna which he does not usually study… R. Yehuda said even such parts of the Scripture which he does not usually study he may not read, nor study parts of the Mishna which he does not usually study…

Seemingly, all agree that learning which brings happiness to the studier is prohibited. However, different types of learning arouse different levels of simcha. The Tannaim debate whether one may review material he has already learned, as apparently this does not generate great levels of excitement and enjoyment. We follow the opinion of R. Yehuda.  

Interestingly, elsewhere (Mo’ed Katan 15a) the Talmud derives from a different verse that a mourner may not learn Torah. God instructs Yechezkel, in anticipation of his wife’s death, to “remain quiet” (ha’anek dom). The gemara also derives that a mourner should not greet another person from this verse.

This passage implies that the halakha simply demands “silence” from the mourner. Furthermore, this gemara does not mention that a mourner may learn any Torah, even the sad and depressing passages! If so, we might distinguish between the prohibition of talmud Torah for a mourner, one experiencing aveilut chadasha, who is enjoined to completely halt his normal activities and to silently contemplate his loss, and one observing aveilut yeshana, who must spend his day in grief and pain.

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            Some Rishonim, however, do conflate the two categories. Tosafot (Mo’ed Katan 21a s.v. ve-assur), for example, reports the Rabbeinu Tam, in his youth, prohibited a mourner from learning any Torah. In his older years, however, he retracted and permitted a mourner to learn those passages which may be learned on Tisha Be-Av. The Shulchan Arukh (Yoreh De’ah 484:4) rules that a mourner may learn these passages.

            What are the sections and topics which one may learn on Tisha Be-Av? The gemara cited above permits learning the books of Eikha and Iyov, and well as the parts of Yirmiyahu that deal with the tragedy and punishment of the Jewish People. In addition, the Shulchan Arukh (554:2) permits learning the commentaries on Eikha and Iyov, the Midrash Eikha, as well as the third chapter of the tractate Mo’ed Katan, which deals with the laws of mourning. The Acharonim (see Mishna Berura 3) also permit learning the Talmudic passages relating to the destruction of Jerusalem and the Temple in Gittin 55b-58a (known as the “Kamtza bar Kamtza” section) and Sanhedrin 104, as well as the Talmud Yerushalmi at the end of tractate Ta’anit (Kitzur Shulchan Arukh 124:5). Some also mention reading Yossipon, a popular chronicle of Jewish history compiled in the early tenth century, which was at times falsely attributed to the Roman historian Josephus. One may also read historical accounts of the destruction of Jerusalem, as well as of other Jewish tragedies, including the Holocaust. Finally, the halakhot of Tisha Be-Av and aveilut may also be studied.

            The Ramban (Torat Ha-Adam, Inyan Aveilut Yeshana), and subsequently the Shulchan Arukh (554:4), permit the recitation of korbanot (parashat ha-tamid), as well as the beraita de-Rabbi Yishma’el, which precedes Pesukei De-Zimra. Apparently, when these passages are said as prayers and not within the framework of talmud Torah, they do not arouse joy and are therefore permitted.

In addition to the five prohibitions of Tisha Be-Av, eating and drinking, washing and anointing, wearing leather shoes and engaging in marital relations, and the prohibition of talmud Torah, the Tosefta (Ta’anit 3:12) teaches that “there should be no greetings between friends on Tisha Be-Av, and to those who don’t know (hedyotot), one should [respond] quietly.” The Rishonim (Rosh, Ta’anit 4:37; Ramban, Torat Ha-Adam; Rambam, Hilkhot Ta’aniyot 5:11), and Shulchan Arukh (554:20) rule accordingly. The Mishna Berura (41) writes that one should even refrain from saying “good morning.”  However, one may wish another “mazal tov,” and one may also shake another’s hand (Har Tzvi, Yoreh De’ah 290).

All of the above prohibitions apply the entire day, until the conclusion of the fast. There are some halakhot and customs that are observed only until midday, however.

Laws and Customs Observed until Midday

            The Hagahot Maymoniyot (Hilkhot Ta’aniyot 5) records the custom in France not to sit on benches until Mincha, similar to a mourner who sits on the ground during the seven days of mourning. The Shulchan Arukh (559:3) cites this custom as well. The Rama adds that nowadays it is customary to sit on benches immediately after leaving the synagogue after Shacharit, although generally kinot are recited until a bit before midday.  The Magen Avraham (2) writes that one may sit on a pillow, as it is only a custom not to sit on benches. In practice, many are accustomed to sitting on low benches or chairs, preferably lower than three tefachim (about twelve inches).

            The Shulchan Arukh (550:2) also records that some sleep on the ground with a rock under their heads on Tisha Be-Av. The Rama comments that one should decrease his comfort in sleeping on Tisha Be-Av night. For example, one who is accustomed to sleep with two pillows should sleep with one. There are even some who place a stone under their head at night, in remembrance of Ya’akov (Bereishit 28:11), as it says, "And he took from the stones of the place.” After putting a rock under his head, he prophetically foresaw the destruction of the Temple, according to the midrash. Pregnant women, as well as those who would suffer extreme discomfort, need not do so (Mishna Berura 7). In general, the Rama advises that one should decrease one’s comforts on Tisha Be-Av. Some suggest, based upon this Rama, that one should refrain from smoking on Tisha Be-Av for this reason (and in general, for others.)

In addition to not sitting on benches, the Talmud (Ta’anit 30b) teaches:

Where it is the custom to do work on the Ninth of Av, we may do work, but where it is not the custom we may not; and everywhere the scholars refrain from work. It has been taught likewise: R. Shimon ben Gamliel says: [In this respect] let a man always consider himself a scholar that he may feel more strongly the fast.

Furthermore, the gemara (ibid.) warns:

R. Akiva says: Anyone who does work on the Ninth of Av will never see in his work a sign of blessing. And the Sages say: Anyone who does work on the Ninth of Av and does not mourn for Jerusalem, will not share in his joy, as it is said: “Rejoice with Jerusalem, and be glad with her, all you that love her; rejoice for joy with her, all you that mourn for her.”

            This passage implies, the Acharonim (see Mishna Berura 42, for example) explain, that one should avoid activities that divert one’s mind from mourning.

The Shulchan Arukh (554:22-24) cites these passages and adds that even in a place in which one does not work on Tisha Be-Av, a non-Jew may work for him, even in his house. In addition, he writes that a “davar ha-avud,” work which if not done may incur a financial loss, is permitted, although preferably after midday.

The Rama (554:22) reports that it is customary to refrain from any work that requires time to accomplish (yesh ba shihuy ketzat) until after midday.

The Arukh Ha-Shulchan (554:21) emphasizes that whether or not to work is dependent upon custom; in his time, because of the hardships of earning a living, it was customary to begin working after the morning prayers. However, he recommends that the “God-fearing Jews” should open their shops only after midday.

Tallit and Tefillin on Tisha Be-Av

One of the fascinating aspects of the Tisha Be-Av prayers is the common custom not to wear tefillin in the morning at Shacharit.

The gemara (Mo’ed Katan 15a; see also 21a) teaches that a mourner does not wear tefillin on the first day of his mourning. When God commanded Yechezkel not to mourn for his wife (Yechezkel 24:17), He told him, “Don your glory.” The Rabbis interpret this to refer to his tefillin; God instructed Yechezkel to wear tefillin, which he ordinarily would not have done on the first day of mourning. The Rishonim differ as to whether the mourner’s disheveled state is an inappropriate vehicle for the tefillin (Rashi, Berakhot 11a s.v. alma), or whether wearing tefillin inherently contradicts the intended appearance of a mourner (Rashi, Sukka 25b s.v mi-de-amar). Despite the apparent similarities between the practices of a mourner and the laws of Tisha Be-Av, the Talmud makes no mention of not wearing tefillin on Tisha Be-Av!

            The Rishonim differ as to whether one should wear tefillin on Tisha Be-Av. On the one hand, the Abudraham cites the Ra’avad, who rules that one should not wear tefillin on Tisha Be-Av, but rather “it is better to place burnt ashes on one’s head.” Similarly, the Rokeach (310) and R. Avraham Ha-Rofe (cited by the Shibolei Ha-Leket (ibid.)) also write that one should not wear tefillin on Tisha Be-Av. We should not overlook the significance of this opinion. According to these Rishonim, we set aside the Biblical commandment of tefillin for the proper observance of Tisha Be-Av! The Rosh (Ta’anit 4:7) cites his teacher, the Maharam Mi-Rothenburg:

Rabbeinu Meir wrote: it seems that on Tisha Be-Av one should not wear tefillin, similar to the first day of mourning, as there is no day more bitter than the day established for eternal mourning.

While we may explain that wearing tefillin is simply inconsistent with one’s mourning on Tisha Be-Av, we may also understand that tefillin may not be worn by one in such a state of bereavement; therefore, just as a mourner may not wear tefillin, we may not do so on Tisha Be-Av.

Some controversy has surrounded the position of the Rambam. The Rambam (Hilkhot Ta’aniyot 5:11) writes: “Some scholars are accustomed not to wear the tefillin shel rosh (the tefillin worn on the head) on Tisha Be-Av.” While Rabbeinu Yerucham (cited by the Beit Yosef 555) argues that according to the Rambam one should NOT wear tefillin on Tisha Be-Av, the Rambam implies that fundamentally wearing tefillin on Tisha Be-Av is superfluous, but permitted. This is the understanding of the Maggid Mishna, as well as the Meiri (Ta’anit 30a).

Why did these scholars refrain specifically from the tefillin shel rosh? The midrash (Pesikta Zutrata Shemot 13:9) points to the uniqueness of the tefillin shel rosh, the phylactery worn on the head.

“All of the nations of the world will see that the name of God is on you” (Devarim 28:10) – R. Eliezer the Great says that this refers to tefillin on the head – since they are called glory (pe’er).

This passage explicitly links the “pe’er,” which the Talmud teaches that the mourner is NOT to don, with the tefillin shel rosh. If so, this source may support the custom, cited by the Rambam, to refrain from wearing specifically the head phylactery on Tisha Be-Av.

On the other hand, the Ge’onim (Sha’arei Teshuva 155, 266) record that it was customary in the “Two Yeshivot,” Sura and Pumbedita, to wear tefillin on Tisha Be-Av. Similarly, the Rashba (Teshuvot 5:214) records that R. Hai Gaon concurred. The Ramban (Ta’anit 30a and in his Torat Ha-Adam, Inyan Aveilut Yeshana) argues that the first day of mourning has a special and unique status, not to be compared with the mourning of Tisha Be-Av. The Rashba (ibid.), Ritva (Ta’anit 30a), Shibolei Ha-Leket (270), Or Zarua (2:439), Manhig (Hilkhot Tisha Be-Av), and others agree.

             The later Rishonim suggest an interesting compromise. The Mordechai (Ta’anit 637) writes:

On the Ninth of Av one is permitted to wear tefillin, as it is a form of “aveilut yeshana” (“old” mourning). However, R. Meir would not don tefillin, nor wrap himself with the tallit in the morning, because it says, “He has cast down from heaven unto the earth the beauty of Israel” (Eikha 2:1) – this is a reference to [one’s] tallit and tefillin. However, in the afternoon, he dons his tefillin and wraps himself in tzitzit.

Indeed, R. Meir ben R. Yekutiel Ha-Kohen of Rothenburg (1260-1298), a student of the Maharam of Rutenburg and author of the Hagahot Maimoniyot, reports that his teacher would wear tefillin in the afternoon.

The Shulchan Arukh (550:1) records that this is the prevalent custom.

            What is the basis for such a practice?  R. Chaim Yosef David Azulai (1724-1807), commonly known by the acronym of his name, Chida, explains that in the morning of Tisha Be-Av, we observe the practices of the first day of mourning, while in the afternoon we act like on the rest of the days of the mourning period (Birkei Yosef). In other words, the intensity of the mourning diminishes as the day progresses. Based upon our discussion last week, I believe we can suggest a slightly different approach.

            We noted last week that Tisha Be-Av is comprised of two distinct themes: It is both a ta’anit tzibbur and a day of aveilut. While these two aspects of Tisha Be-Av coexist, the theme of aveilut appears to dominate the morning experience; after midday, the intense aveilut wanes, and the ta’anit tzibbur emerges. For example, the keriat ha-Torah of Mincha is identical to that of a communal fast day.

            Ashkenazic communities follow the above custom regarding tefillin. In a previous lecture (http://vbm-torah.org/archive/tefila/09tefila.htm), we discussed the problem of reciting keriat shema and shemoneh esrei without wearing tefillin. Thus, the Be’er Heitev cites those who would pray at home on Tisha Be-Av, while wearing their tallit and tefillin, and then come to synagogue to recite kinot. Furthermore, many report that the custom of the Kabbalists of Jerusalem, as established by the R. Sar Shalom Sharabi (1720-1777), the Rashash, Rosh Yeshiva of the [Kabbalist] Beit El Yeshiva, is to wear tallit and tefillin for Shacharit, even publically (see Yechave Da’at 2:64).

            It is also customary to wear and recite the blessing upon the tallit at Mincha. Some question whether one who removed his tallit katan (“tzitzit”) the previous night should wear them until Mincha without a blessing or recite the blessing on them in the morning (Mishna Berura 555:2). Some suggest sleeping in one’s tzitzit in order to avoid this dilemma.